EU Law

European Law

European Economic Area (EEA) or European Union(EU) Applications

Under European Community Law, EEA and Swiss nationals can enter and live in the UK to exercise free movement rights. Their non-EEA national family members can also join the EEA national sponsor

EEA Registration Certificate

An EEA Registration certificate is a document that confirms that an EEA national has a right to reside and work in the UK. Importantly, an EEA citizen exercising treaty rights in the country can ask to be issued an EEA registration certificate for the purpose of confirming his/her rights of residence under the European Convention law.

EEA Family Permit

The EEA Family Permit is usually granted to family members of EEA nationals who are nationals of countries outside the European Economic Area (EEA). An EEA family permit can be considered if:

The Sponsor has been living and has a job, either as a worker or as a self-employed individual, in an EEA member state

The Sponsor and his or her family member (spouse or civil partner) has been living together in an EEA country

the EEA family permit is issued only for six months and the family member of an EEA national (non-EEA national) can apply for residence card before the expiration date of the EEA family permit.

RESIDENCE CARD AS NON-EEA FAMILY MEMBERS OF EEA NATIONALS

As an European National living in the United Kingdom, the Immigration (EEA) Regulations (2016) allows your family members who are non-EEA citizens the right to remain in the UK.

The Non-EEA family member who is looking to come into the UK may apply for a Residence Card, a document confirming the non-EEA national’s rights to residence in the UK based on their relationship with the EEA national under the European law.

The Residence Card confirms the EEA national’s residence rights in the UK as per the Immigration (EEA) Regulations (2016). The Residence card is usually valid for 5 years from the issued date.

A Non-EEA family member can apply for confirmation of right to permanent residence in the UK, if he or she has lived here for a continuous period of 5 years with the EEA or Swiss National, who must also have been employed, self-employed, studying or self-sufficient in the UK during those 5 years.

NOTE: The family member of an EEA or Swiss National does not need to obtain documents to confirm his or her right to residence in the UK

EEA nationals or their family members do not need to apply for a registration certificate but they can do so if they wish. It confirms that they have the right to live in the UK under European Community law

Family Member of an EEA National

Regulation 7 defines a family member as:

Spouse or civil partner,

Dependent children (under 21 years of age) of the EEA national or of their spouse/civil partner and this also includes step-children or adopted children,

Other dependents such as parents and grandparents of the EEA national or of their spouse/civil partner.

NOTE: Rules apply slightly different in the case where the EEA national is a student. As a student, after the three months of residing in the UK, the children of the student must be dependent on the EEA national to be considered as family members but other dependents (parents and grandparents) including those of the student’s spouse or civil partner will not be treated as family members.

Extended Family member

Regulation 8 defines extended family members as;

Distant family members related to the EEA national or to his or her spouse/civil partner who can prove they are dependent.

Partners who can demonstrate a form of durable relationship with the EEA national without it being a civil partnership

The following conditions must be established by an extended family member in relation to dependency;

Article 3(2) of the Directive states that the individual must be a dependent or member of the EEA national in the country from which he or she is from. This explains that the extended family member must have shown their household relationship or dependency on the specified EEA national in the country from which he or she moved to the UK;

It is essential that the dependency or household relationship with the EEA national must have existed very recently before the EEA national came to the UK;

The EEA national and the extended family member must have come to the UK at the same time or just before or very recently after the EEA national came to the UK.

An individual who is related to and financially dependent on the EEA national or to his or her spouse/civil partner or the individual is a member of the EEA national’s household who has either:

Joined the EEA national in the UK and has continued to be a dependent on him/her or has joined him/her to be a member of their household;

Has come with the EEA national to the UK or desires to join him or her here.

An individual who is a relative of and strictly requires the personal care of the EEA national or of his or her spouse/civil partner due to serious health issues that the individual may have.

An individual who would gather together the necessary requirements (except for those in relation to entry clearance) of the Immigration Rules for ILR as a dependent relative of the EEA national where such a person is present and has remained in the UK.

An individual who is not a civil partner but can prove that he or she is in a different kind of partnership or in a durable relationship with the EEA national.

Please note that an individual has no rights deriving for the EU law until he or she has been acknowledged as an extended family member and has been issued an EEA family permit, a registration certificate or a residence card.

PERMANENT RESIDENCE

Permanent residence is acquired after five continuous years of possession of the right of residence. The right of residence is possessed by a person who is exercising Treaty rights, which means moving to another Member State within the EEA other than your own and then engaging in one or more of:

Worker

self -employment

self -sufficiency

Study

job-seeker

The family members of an EEA citizen who engages in one of these activities will also qualify for permanent residence after five years.

Absences from the UK of up to six months do not disqualify or prevent a person from acquiring permanent residence. Gaps in employment are also permitted in some circumstances. As a rule of thumb, anything up to six months should be fine and longer can be OK in some circumstances. Maternity leave of up to 12 months should be fine.

Automatic nature of permanent residence

There is no obligation to apply for a permanent residence card but EEA nationals and their family members can do so if they wish. Like the other rights of EU citizens in the Citizens’ Directive, permanent residence is an automatic right that operates by law; After five years of residing in the UK as a qualified person, EEA nationals are automatically granted the status of permanent residency. Following one further year of permanent residency, they can apply for British citizenship, proving they can meet certain eligibility requirements.

As of 12 November 2015, EEA citizens who wishes to apply for British nationality must be able to produce a document that confirms their permanent resident status in the UK. This means that applying for document certifying permanent residence is a necessary requirement for any EEA national wishing to apply for British nationality

Surinder Singh route

The ‘Surinder Singh route’ has become well known to British citizens seeking to be reunited with their family members. The toughening up of UK immigration rules in July 2012 – particularly the introduction of the minimum income rule and its labyrinthine documentary requirements and the awful elderly dependent relative rules – has resulted in an ever-increasing number of split families.

The principle established by the Surinder Singh case is that the right in European Union law for a person to move from one Member State to another must include a right to return, otherwise a person would be deterred from moving in the first place. If you are exercising your right to return to your home Member State, you are therefore doing so under European Union law. Therefore… it is European Union law and not the domestic rules of your own Member State that also applies to any family members.

Therefore, this route allows non-EU family members of British citizens to apply for a UK visa using the European law, as opposed to applying under the UK Immigration Rules.

Applying under the EU law means no English test and no financial requirements (The British citizen does not have to prove an income of £18,600 as introduced by the British Government in 2012).

Requirements

1) A British citizen must go and work in another EU member country (or be self-employed) before returning to the UK. This is how there is ‘Movement within the EU’.
2) For a minimum period of 3 months
3) The British citizen’s ‘Centre of life’ must have been transferred to that other EU member country. There is no exhaustive list to prove it, but examples are: renting a place to live or buying a property (as opposed to staying at a hotel), getting a job or setting up a business in that country.
4) In the case of Non-EU spouses, both UK and non-EU spouse must have lived together in that EU member country and been married before returning to the UK.
5) EU law considers a child to be a ‘child’ until the age of 20 (i.e. under 21) and not under 18 years as under the Immigration Rules.
6) Parents and grandparents have to be dependent, which means financially relying on the Sponsor for their essential living needs.
7) Dependency under the EU law is that of fact, the reasons for dependency are not relevant. For example, if a family member can work but chooses not to and depend on an EEA national instead, this would be acceptable (in principal).
8) The European law differentiates between ‘family members’ and ‘extended family members’. The difference is very important! For example, children or grandchildren under 21 of an EEA national or of his/her spouse, so step-children can qualify as well. Those who are aged 21 years or older can be considered if they are dependent

Case of O and B v The Netherlands

The most important change since Surinder Singh itself is the case of O and B v The Netherlands, handed down by the Grand Chamber of the Court of the European Union on 12 March 2014. Without much mentioning Surinder Singh, the judgment completely re-writes the legal basis of the earlier case and sets out important and binding new guidance.

A genuine residence period of at least three months is required (para 54)
2. Weekend visits and holidays do not count as residence for this purpose (para 59)
3. Any citizen of the Union can potentially benefit from this right, not just workers and the self -employed (references to Article 7 of Citizens Directive 2004/38, e.g. para 56, and to Article 21 of the TFEU, e.g. para 54)
4. During the period of residence family life must have been “created or strengthened” (para 51)
5. Abuse is impermissible (para 58)

DERIVATIVE RESIDENCE CARD

A person who does not qualify for a right of residence under the free movement directive may qualify for another right of residence under EU law. These are known as ‘derivative rights’ because they come from (are ‘derived’ from) EU law, not from the directive.

Following are several cases in which the applicants and their dependents under 18 years of age may qualify to obtain derivative residence cards:

As the primary carer of a British citizen child or dependent adult, where requiring the primary carer to leave the UK would force that British citizen to leave the EEA;
2. As the primary carer of an EEA national child who is exercising free movement rights in the UK as a self-sufficient person, where requiring the primary carer to leave the UK would prevent the EEA national child exercising those the free movement rights;
3. As the child of an EEA national worker/former worker where that child is in education in the UK;
4. As the primary carer of a child of an EEA national worker/former worker where that child is in education in the UK, and where requiring the primary carer to leave the UK would prevent the child from continuing their education in the UK; or
5. As the dependent child aged under 18 of a primary carer in one of the categories set out above, where requiring that dependent child to leave the UK would force the primary carer to leave the UK with them.

In all the above categories, the applicant needs to provide documentary evidences of the genuineness of relationship and of all the factors relevant to assess the circumstances of the application and /or the EEA /British Citizen child. Once approved, the derivative residence card is issued for a maximum of five years` time and entitles the holder full rights of working in the UK. The derivative residence card holders, however are not permitted to apply for permanent residence under the EEA regulations but may qualify for ILR under the immigration rules based on having lived for 10 years legally and continuously residence in the UK as there are no restrictions on the number of applications made by the non –EEA national.

Retained rights for EU citizens and family members

If a divorce or dissolution of a civil partnership was because of the non-EEA national being the victim of domestic abuse, or if other ‘particularly difficult circumstances’ exist, then the non-EEA national may retain an EU law right of residence in the UK in her/his own right. In this case, specialist advice should be sought immediately.

In addition, there are other circumstances whereby a person retains a right of residence under EU law and can therefore remain lawfully in the UK even though the marriage/civil partnership has been terminated/dissolved, for example:

there is a child at school in the UK who is residing with the non-EEA parent or this parent has custody of this child or the court has ordered that this parent must have access to this child; or

the couple were married/in a civil partnership for three years and resided in the UK in this capacity for at least one year; or

the non-EEA family member is widowed/a surviving partner of an EEA national who had a right to reside and s/he resided continuously in the United Kingdom for at least one year before the death and s/he would be a worker/self-employed/ self-sufficient person her/himself; or

the non-EEA family member is a student who was the direct descendant of an EEA national who had a right to reside and who has died or left the UK or was the direct descendant of the spouse of such an EEA national.

These can be very complex applications. We would advise people who fall into any of the categories referred to in this section to seek specialist advice immediately.